the kentucky education television is sponsoring this debate, which is hosted by bill goodman. >> mr. gurley martin, dr. rand paul and mr. john stephenson. thank you bir joining us and thank you for joining us across the state of kentucky. before we get started, a couple notes for our viewers. another protest and had been

scheduled to be here but is unable to because of a death in his family. bill johnson who filed as a candidate has indicated that he is out of the primary. he has not officially withdrawn. >> kentucky has garnered a lot of national attention for this race. arizona, mccain and hayworth. here is the republican primary. let me begin this way, mr. tray grayson and mr. rand paul. describe the republican party that you belong to and how you would be representing republicans in kentucky. >> i think every generation, as jefferson said, renews its defense of liberty and every generation, a political party redefines what it stands for.

a political party is an empty vessel unless we in view it with values. what i mean by that is we have to believe in something. i got into this race because i was upset that a lot of republicans voted for the bank bailout. i do not know any republicans who thinks that republicans should be in business. maybe we need some new people, some people who are not career politicians and who are outside of the system. i fear if we do not cut the deficit will consumers as a country. >> to answer the question, my view is pretty similar to the view that president reagan described. he compared the republican party to a three legged stool. you can have all of those together. that is the kind of senator i will be. somebody who represents the party well, socially conservative, focus on limited government, small taxes and a strong national defense.

that is the party i think of. philosophically, are you an agreement on some of the areas that you espoused? there is agreement the disagreement. where is that? >> i would say, i will not vote for any budget that is not budget -- balance, republican or democrat. tray said that is impractical and talks about a 10-year plan. we have had too many people come in with 10-year plans, if your plans, that is admitting defeat before we start. i think we have to do something about it. the interest alone on the debt, $383 billion this year, is more than we will spend on all the roads in the u.s. the deficit is consuming us. if interest rates rise, we could be in a debt crisis like greece.

>> we agree we need a balanced budget. we both agree the bailout for bad ideas. we have a big disagreement for national security, for example. i support the patriot act and he does not. he thinks that a nuclear iran is not a threat. i think it is. he alluded to my comments about a balanced budget. my comment was going from $1.10 trillion budget deficit to zero is not practical. i want to be part of a solution, whether it is over a couple of years, that is a more practical approach. it will result in a balanced budget. saying i will never vote that way is going to be part of a coalition that will get us together. this is somebody that will have a press conference and talk about things but i will get things done. i think we can do that and balance the budget. >> on earmarks and the

preparations, i received an e- mail from bowling green. are you philosophically opposed to the practice known as earmarking and regardless to your answer to that question, would you engage in this practice, given that many other members do? >> i would not engage in air marks. i am philosophically opposed to them. the entire system represents and is symbolic of what has gone wrong with washington. you remember the bridge to nowhere. sarah palin talked about that. it was literally a bridge to nowhere. that is why i say that they are happening on both sides. every state wants them. if one state says they did it come of the other state did not get it. that is the process that is bankrupting our country. >> the bridge to nowhere is an extreme example. when is it appropriate when

money is apportioned to a state or district for the common good and the courts i say let's based the spending on where we need to build roads. with the road has not been repaired. or the road shows high fatalities, but based on objective evidence cannot seniority. look and west virginia. in dictate every inch of the state based on his seniority. -- date paid every inch of the state based on his seniority. and shouldn't be based on how old you can grow in office and you get more goodies for your state. as long as we continue the system, the bankruptcy will get worse and the deficit will grow. we will get to a time when the debt is on manageable for the course there would be an opportunity for a road to be fixed or school to be repaired or for some other needed

appropriation? >> based on need and the object of needs of that project. what i am asking is if you bring in $2.40 a troy it, let's spend $2.40 trillion. we are spending $4 trillion. it is out of control. but the decisions on objective facts and which projects need to be built and not the seniority of the senators and the courts where do you disagree with that? >> we clearly need earmark reform. we need more transparency. i think the constitution very clearly gives congress and i think the senator from kentucky will have a better idea of what are high priority projects for kentucky's and a bureaucrat in washington d.c. we need help and i think earmarks are appropriate. we have a huge drug problem in

kentucky. we have a prescription drug problem. congressman rogers has earmarked money for a program that is working. it provides treatment, law enforcement, and helps introduce educational opportunities. that is an earmark. it might need to be smaller cuts would have to tighten our belts but that does not mean we should throw all of those out of the courts do you know enough about the program to agree or disagree? >> plots throw money at a problem. he identified welfare and drug dependency as a problem. we have been throwing money at it since 1961. maybe we should have more local solutions and less of washington telling us what to do. >> it is a local solution. it is administered right here in kentucky. it is working. that is one of the other differences.

he wants to fight for people in california and new york. his father's supporters. i think that is embarrassing at this point in the campaign that he does not know anything about it. >> mr. stephenson, why are you in this race? >> i certainly cannot agree with these two young fellows although i do respect them. we do not have the republican party or democratic party anymore. unfortunately. we have an oligarchy and this country where six banks control 60% of the nation's wealth. the country is being controlled by money right now. you see it in this campaign. tray has spent $3 million. dr. paul is spending $3 million. i am spending less than 5000. i am trying to get a point across that money is not the answer. earmarks is not the answer.

government is not the answer. >> the answer is? >> we do not need to make a left or right turn. we need to make a u-turn to god and of the principles. the very first thing we need to do, which has not been done, even though we have had the senate, house, and presidency, abortion still exists. every 30 seconds, another child life is taken. even though we had control. republican appointees gave us roe v. wade. if you really want to make a change in washington d.c., you need to send a senator there who is not running for office for a second term. i have pledged tonight that i will only run for one term. i do not want to spend 40% of my time running for a second term. in this quibble between the two, monday is controlling

things. tonight, i am releasing all of my income taxes for the last five years and i have pledged that i will release my income tax for every year i am in office, including the year i leave office. somebody needs to go to washington unattached unequivocally. we need to do with second chronicles says, humble ourselves, ask for forgiveness of our sins and then he will heal our land. once we have done that, which consults his problems and use these bright young fellows to do that. >> mr. martin, you are the fourth of the foursome. tell us why you got into the race. >> just because i could. that is why i got in. the reason i got in is because 82 of the 86 i have been on this earth, people like these

fellows, they are mighty good man but they are mighty wrong. >> where are they wrong? >> because, both parties have put on a show it to entertain the public while the -- while offering no change, whatsoever. tray grayson party, rand paul party, the tea party. >> my party is the gop, the grand old party. that means we stand for what robert taft stood for. what barry goldwater stood for. the republican party deserted him. i worked for him for six weeks during the 64 campaign.

i got a good lesson in federal politics. he went to new york to be president. nelson rockefeller met him in new york city and said if you except him as your vice- president, you have the job. goldwater told you can float this out in the battle of the atlantic and went back to arizona. >> we invite your questions tonight. you may send an e-mail. you may also use the web form at www.ktt.org/ky or you can call a,' . if you were sitting on the confirmation hearings for the choice of supreme court which he made to date, what question

would you have for elena kagan? >> my question would be if she believes in a limited competition -- ltd. constitution the way the framers intended. she does not have a judicial record. her hearings will be much more interesting than just as sotomayor or's. >> what her having no tradition record have a bearing on whether or not you would confirm or not? >> it would not. it would mean to me that those hearings mean more because you have to draw information out from her. she wrote a paper several years ago in which she said we need more information in this confirmation hearings. it is interesting to see if she is forthcoming. we have had a lot of stealth nominees over the years. it is important for the american public to give her a fair shake and listen to what she has to say. >> is she a good choice?

would you have a question for her? was the first question i would ask her is her interpretation of the commerce clause. big government has been active -- attracted to this since the 1930's onwards. if she someone -- is she someone who has an expansionist view of the commerce clause which allows government to do everything or is she a constructionist and believes the constitution limits the government to the enumerated powers. this is important. jack conway was asked on national television about the health care bill and he said we're in the constitution doesn't say you do not have the right to buy insurance. that is a total misunderstanding of the constitution. he went to law school. he thinks it the right is not listed, you do not have that. he needs to read the ninth and 10th amendments. this is important for supreme court justices and candidates to have at least a writ metro understanding of the constitution. >> i would not even consider the

appointment because the a pointer is not eligible to make the appointment. >> i would certainly have some questions for her. i think the president deserves to a point to people under our constitution. >> not this president. >> that he chooses. at the same time, i would ask questions from a historical standpoint. i would want to have somebody who really understood the constitution very well, who had studied it, and strictly interpret the constitution. i believe in that. it was written for a purpose. one other thing i would ask is if she has gone back to read the minutes and the notes and the briefs that were written by the individuals who actually constructed the constitution so she would also see the written word but the interpretations and the leanings of the people who actually drafted it and wrote

it. >> on foreign policy, assumed that economic sanctions and regime change or other non- military options are not sufficient to prevent iran from developing nuclear weapons, would you support the use of military force by the u.s. to do so? >> i think the decision to declare war is the most important decision any congressman or senator will ever take. while i run for office because i am concerned about the deficit, the most important vote would be on national defense. it is the primary function of federal government and the most important thing we do. when making decisions on war, you have to have evidence. would you vote to go to war with iran right now? what is easy is that iran is a threat and we have to do something to prevent them from having nuclear weapons. i am in favor of having the u.s. taxpayer no longer subsidize

companies that do business in iran and having state pension fund divest which is part of what we are trying at this point. i think we do need to keep in context that the last national intelligence estimate said they are not developing nuclear weapons but they bear close watching because they are not trustworthy. >> is it difficult to reach a point where you have to make a decision? what evidence would you have and do not risk waiting too long to make that decision? >> what you have to do is decide what affects our national security and have a debate. one thing and will be big on as forcing debate. we have not had a declaration of war and our country since 1942. we need to have a grand debate. not one or two hours. an extensive debate. does something affect our national security? is it a threat to our national security? we make decisions on declaring war.

that would be making light of the situation to say i am for war or let's drop a nuclear weapon. you can air on both sides of strategy. i think president obama error by saying we will not use nuclear weapons. i think you're a defense strategy should be privately held and the less known about it, the better. in the same way, whether it is offensive, the last known about it the better. we need to have some of these things and not prejudged in advance. >> do you disagree? is there a point you would reach to support military intervention? >> we should not take it off the table. even the threat of military action can coerce iran into changing their behavior when it comes to this pursuit for nuclear weapons. it is interesting that dr. paul says that then having it is a threat when he is reported very clearly stating as them not

having a nuclear weapon is a threat to our national security. i am glad he is clear on that. >> you didn't listen to the whole speech. >> i did listen to the whole speech. i would encourage everybody to listen to the whole speech when he said iran is not a threat to our national security. it is very clear. it is not out of context. it was his old position. it was the position of his father. i am praising him for changing his mind during this campaign. it is important to pursue the sanctions that we talked about. one of the things that is frustrating the is the demonstration is slow walking those efforts to congress to get a resolution. that is important but if we are going to solve anything, we have just given iran three more months to get the bomb which is a huge threat to the courts where do taken out of context?

>> absolutely. that is why it the endorsement was switched. your whole campaign is based on intellectual dishonesty. you will take three words out of context and implies something that is not my conclusion. " what did you mean by saying that -- >> this is not a two-way thing. " let him finish. >> i never said it was desirable and that is what you implied by your ad. you implied that it was desirable or no objections. that is untrue and dishonest. >> that phrase, you are talking about the having a singular nuclear weapon is not a threat. what context with that ever make sense? >> the conclusion was that what does it take to go to war and

win the you decide to go to war and are things a threat is not whether we go to war. there has to be a larger discussion based on these issues. >> i am not saying you would not go to war with them. i will give you the benefit of the doubt. you said that iran not having a nuclear weapon is a threat -- and having a nuclear weapon is not a threat. >> the issue is more complicated than that. the issue involved in much longer speech. it talks about delivery. >> you want to add something cooks lamarck >> quickly. these two fellows are as wrong as they can be. there are no minor candidates until the votes are counted. they are treated as major candidates. we has -- we have been at war since wwii. it is not warped of war is ended seven creasing government. if we go to war, we win them.

otherwise, we have police action setting up one world government which is the goal of everything both parties are doing. >> our first phone call of the night. question or comment? >> i wanted to ask the candidates what they feel about the state legislature at the federal level. >> state legislating morality? the main social issues? can you clarify that more? >> abortion, gay marriage, gays in the military. >> thank you. >> i wear a pan of the 10 commandments. and i believe in the 10 commandments. i just finished traveling kentucky and speaking all of the

the state. anybody who has done that, you know they have all changed. the studio has changed. one thing does not change, the holy bible. if we fail to follow the teachings of christ, if we fail to defend israel which god is the only land on this world given to them, from genesis, we have made a grave mistake. this country has lost the war. if we cannot turn back to the moral principles of the economics, the world will not save as. the family is disintegrating. our insurance companies are

disintegrating. we have a choice. it is a simple choice. we have to grab it. we have to take the initiative. you can have the greatest idea in the world but if you do not implement the idea, it goes nowhere. >> let me get a comment from mr. paul and mr. grayson on this. >> there is a congressman from georgia. he says he has a multi step testing he goes there with each piece of legislation. he asks a first is it constitutional. he asks if it is moral. he then asks if it is practical. that is the way i would address each piece of legislation. >> i support a federal amendment overturning roe v wade. i am proud of my endorsement from the kentucky right to life.

marriages between a man and a woman and we need laws to protect that. these are issues that are important to make an important to most kentucky and regardless of political party. >> let me return to foreign policy. how long should the u.s. keep troops in iraq and afghanistan? >> i think troop decisions in any particular country are decisions made by the commander in chief and not by congress with the senate. under the constitution, congress and the senate can declare war and decide on funding war. there was never the intent of the constitution that we would have 435 generals micromanaging troop decisions. it would likely be unconstitutional for congress to tell the president, the troops he can have in any given war theater. the president could also bring

home the to thousand troops. all to belly, it is a misunderstanding to think that congress gets to decide what actual troop deployment levels are to the courts which have the same response to troop levels in germany or japan? >> they can be involved with funding, as well. it is paramount to the commander in chief has that authority. >> do you agree with that? >> the constitution gives congress the power of the purse. they are an important part of this debate. i support both the surge in iraq and afghanistan. i did not give a speech calling for the end of the iraqi war. as a senator from kentucky, i think it is important for me to be involved in the funding of those. it is important to have a part

of that. i will not micromanage the war. it does matter and it would matter if president obama would agree with that. >> this is an important point. i think it needs to be made. war is a devastating thing. it is a thing that you never enter into. i worked for a congressman. his brother was in the cia. i learned a lot about studying history and the wars. you did not enter a war likely. when you do, you'd better enter it to win or not get in at all. the problem with these wars, they are not paid for yet. the american people need to know that we are over there fighting and got our boys and girls of dying and we have not suffered the consequences of waging those

wars. the least we can do when we go to war is to call the nation to order and put a tax on to pay for the war. i agree with one thing. we are out spending ourselves unmercifully. one thing these candidates are talking about is balanced budgets. you could not do that overnight if you are still spending outrageously. you have to make the cuts necessary. you have to get serious. and if you cannot just give away goodies. i remember riding around in the car and i was told that the greatest fear is when people can vote of benefits for themselves. when that happens, you find yourself in the mess we are in. this country is in a mess. if we are going to straighten it out, we have to have serious people with serious ideas and serious on a stay with the public. we have to tell them the truth.

we have to pay for the actions we do. if we are going to have benefits, we have to pay for them. >> what to each of the candidates think about the death penalty? >> i think the death penalty is an appropriate punishment for the most heinous crimes. terrorists, people who commit grievous acts. >> the death penalty is a learning tool. when i was less than five years old, i witnessed a little planning of a white man for the rape of a white woman. people came from everywhere and the crime rate went down immediately. >> i support the death penalty. >> that is a tough question for me. i am sure that if somebody murdered my wife were raped my

wife, i would want them murdered. i would try to murder them myself. but in reality, i must tell you as a christian, i would not be for the death penalty. for one reason i must point out, there is such a discriminatory system of justice in this country where black people, hispanic people, our way over the majority in our prisons. until that system was properly rectified before the pop -- i would not be for the death penalty. >> a quick question or comment. >> are any of the candidates willing to label china a currency manipulator? >> i think that are approaching the status of currency it manipulator. it is clear that their currency

is out of whack with hours and at bridging and needs to be re- evaluated. the second part of the question is the most important part. if their currency or pegged at an appropriate level, it would help manufacturing and kentucky and america. it is a lot cheaper to manufacture goods in china and it is an artificial boost. >> the balance of trade has been an issue for a long time. we import a great deal more than we export. and we pay for that with dollars. the dollars have to go somewhere. when china receives these dollars, they buy our debt. it is a self perpetuating cycle. i think it is coming to an end. it is ending precisely because the chinese are becoming more wary of holding our currency. the only thing keeping our dollar up as people are worried about the zero more than the dollar. it is a house of cards.

it is coming to an end. >> we should have never gotten ourselves into this situation, bolling china, -- 0 in china, owing ,-- owingowing mexico. retrofitting our factories where they are sitting empty. we employing people and making kentucky products. we can turn this country around but it takes an optimist. it takes a leader. somebody to instigate these things. you cannot sit back and wait for somebody to re-elect you. you have to have the brass and understanding and ability to lead. >> you betrayed your opponent as a kooky candidate with strange ideas. what questions would you ask him

regarding some of the things you have been critical of. >> i would say on guantanamo bay, what for six months did your website said you wanted to close guantanamo bay? do not talked about chinese uighers. >> if you are given the answer for me, you are going to answer the question. >> why did you not say anything until it came out that you might lose an election over it? >> i have never been for closing down guantanamo bay. i have been for trying the terrorists and military tribunals. i think there is a chance we could try them down there. it may go back to guantanamo which is what i support. you have obfuscated and had been intellectually dishonest. when i was asked the question, it was about chinese uighers.

>> there was no reference in that video about chinese uighers. it was on your own web site. >> i will answer the issue. >> about one year ago, i was asked about these chinese uighers. these are people being released by the united states. the question was do we want them in the u.s.. i said i did not particularly want them in the u.s. the bush administration said we will set -- we will spend too wanted the dollar million for 20 people. i said that was a waste of money. >> it is not in that speech. >> can you quiet up a bit? >> he leaves out of my sentence, if you cannot convict them or if you are not going to try them. he implies, which is dishonest, but i am for reducing khalid sheik mohammed, which is untrue.

that is why your campaign is sagging in failing. you have been dishonest. >> you clearly said you wanted to shut down gitmo. in the speech, there was never a reference to chinese uighers. the second part of your question is about abortion. on abortion, he started the campaign in clearly stated that he supported a state only -- >> i will ask you to not talk under your breath and that it is difficult for the viewers. >> i know. >> they are attacking each other. >> they know that. please let him finish. >> he changed his web page. he answers the question saying that he disagrees with the positions. a incurious, when did he have

this conversion? >> it is hard to debate anything with tray because he makes up the tax. i made my first statement in my church when i was 17. my disagreement was with my church that did not take a political role. if you believe it is wrong, you should say something about it. when i was in medical school, i refused to do abortions. i refused to participate. i have been a member of a group for 20 years, american association of physicians and surgeons. i have always supported state and federal attempts. he does not read things very well. what i find shameful about his campaign and about him as a person is my kids go to catholic school. they are taught abortion is wrong from a young age. my kids have to come home and

see the trash that you put out. absolute gutter trash saying that i support abortion. you know it is a lot and you continually do that because it desperately need this job that you will like to get it. >> what questions do you have tonight? social security? >> he is using the democrat attacks on me. he is trying to scare senior citizens and to saying i will cut it off. let's have an intelligent debate about is social security going broke? it used to be that we had seven workers for one retiree. we spent it in the general fund. social security is left with all of these ious. >> do you have a question to him?oto >> his description of the question is wrong. he is accusing me of wanting to cut off senior citizens when

people know that there are problems with social security. something will have to happen. i would ask, if you do not think eligibility should change, what do you want to do? triple the taxes on young people? how do you make up for the shortfall? was the first thing we need to do is get the economy moving. for one thing we have is when the economy is growing, the day of reckoning is postponed. if we can cut spending and get the economy going, we will have more time to spend -- to solve the problem. i would get people together and see where we can get a majority. i find it ironic that the day his campaign sent a letter criticizing my wife and daughter on a campaign issue is the date that he has his children. he still had not answered the question. >> both of these young fellows were raised catholic. i think that is fine. i married a good catholic girl. they were taught in the catholic schools that abortion is wrong.

i was raised baptist. it will stop you from sending but it will stop you from enjoying it. being a baptist in the state, you have to believe that god is really mad at what is going on. i will tell you something. i fear of god. i fear god because i fear what he thinks about what we are doing in this country on that issue. you all talk about social security. >> one second. quick response because we have other issues. what would you do about social security? >> social security is very important. we need to make some adjustments. we need to tell the people of the oddest things. this country is going broke. we need to raise the age on social security. we need to go with you read --

>> would you ticket to 70 years old? >> i would look at it. you have to do something. >> the best way to do with politically is to have a bipartisan commission talk about it. raising the age is one alternative. the reason you need to have the commission is because you have the sniping of people who want to use it for political reasons. to get beyond that sort of typical democrat sniping, if you bring people together, it is less likely to become a campaign issue. you have to do one of a couple things. you have to consider raising the age gradually. if you raise the age gradually, you do what on younger people. my age and younger. those people have young -- have time to accommodate. most young people did not expect social security to be around.

how could it possibly be around? that is one of the answers. if you do not like that, you have to agree to the other solution which is tripling or quadrupling the payroll tax. >> a phone call on our program from jordan smith. >> i would like to know how the candidates would promote higher education to up the staid and promote our universities? >> thank you. >> education, i was the last elected superintendent of public instruction for kentucky. i have devoted my entire life to education. >> what would you do for education? >> it is the number one issue we need to put our money in. it is the only way we can lift us up.

all the votes to rise with education. we need to start at the level, at the first reading level. from childhood all the way through senior citizens. education should never end. i read constantly. we can use the internet if used properly. we need to eliminate the pornography from the internet. >> is there a federal role for education? >> no put the constitution does not talk about a federal for education. i would to -- i would eliminate the department of education and permit that to the state. if you send less money to washington, you will have more money in your state and the courts which are not appropriate, there is not a financial role for the financial -- for the government for awarding scholarships or building programs on campus? >> most of that money is better given back to the states and spend at the state level where the decisions are more close to home and more local decisions and not in washington i think

there is a federal role for education. we need to think of this in the overall context of spending. we have to spend less. starting with that, this goes back to our earlier discussion. there are strategic needs that our universities have put some of those dollars can come from the federal the government. i support financial aid for those students. he would end the financial and for those students. -- financial aid for the students. it is inappropriate use of federal taxpayer dollars bequest to the federal government sponsors certain programs? >> no. education begins at home. it should never gravitate higher than the state level. federal government has no business in education, whatsoever. they barely -- they only use it to gain more power.

>> here is a question on e- mailed. when elected, your first vote will be for the election of the republican senate leader. who would you vote for? >> that is a good question. >> my understanding is that the election has been unanimous in the past and i did not see why it would not be. you would join other -- >> there has not been an opponent for senator mcconnell. >> if there was an opponent. >> we would have to know who he was and discuss it. >> at this point, you are deciding whether to vote for senator mcconnell. would you be in favor of him as the leader? >> having senator mcconnell and leadership has been good for kentucky. i acknowledge that. there are many things i agree with him on. i agree -- i disagree with him

on some things. the bank bailout was a horrible mistake. those are honest disagreements. kentucky want to u.s. senators, not one. we do not want a rubber-stamp. i will be my own person. i will be my own individual. i may vote for but there are a lot of factors in favor of that but the thing is, you want a senator who will think about these issues and will consider a and b their own person. >> having thought about it, i would probably cast a vote for mr. mcconnell. >> mr. martin is not the senate leader, senator mcconnell will do the job i would not vote for senator mcconnell. i will tell you why. i tried to talk to him about health care. i wanted him to negotiate on health care to get tort reform and portability and some other things into the bill because i

knew it was going to pass. i have been a democrat most of my life. i have only been a republican the last nine years because of the abortion issue. i learned a long time ago, you have to work with both parties. you cannot just say no. i think he has been harmed kentucky by saying no. i think columbia snowe would make a good leader. >> moving right along. another senator mcconnell bill on agriculture. a viewer wrote me last night expressing that we have not had a healthy discussion about agriculture in kentucky. he specifically asked about the farm bill supported by senator mcconnell. if elected, what would you do for agriculture and the state of kentucky and would you have supported the farm bill that

senator mcconnell backed? >> i would have supported the farm bill. when i ran for the commissioner of agriculture in 1975, i tried van and was editorialized about my ideas. and we needed to look at tobacco and what happens when that is gone. i think i have. >> the federal government does have a role in agriculture. >> certainly. it has a role in the selling of our products. we need to sell kentucky products. we need to work with agriculture and our farms and across the federal government can do that better than the state government? >> everything in life is a local, state, and federal cooperation. >> what is your response? >> we need to get government completely out of the business of business. >> get them off the farm and the courts to get them off the farm. >> farm bill? >> i think it has an important

role. i would have supported the farm bill. i have also told the farm leadership that when it comes up, going back, we will have less money to spend. the next farm bill cannot be as generous as this last one. it is one of our biggest industries and kentucky. it does a lot of good for our state. i support that effort. i would stand with him again on that in the future. >> y do you think that agriculture has not been a topic of consideration through e-mail or phone calls? is it one of kentucky's leading industries and should it be? >> it has not been a huge issue in panels or throughout the debate. i say to the farm community that i have signed a pledge that i will vote for permanent repeal of the state tax. farmers say to me all the time that they are concerned about

the fighting the family farm to pay the taxes. -- dividing the family farm to pay the taxes. the democrats have shown a willingness to let it come back. i am absolutely opposed to the estate tax. i did nothing federal subsidies of agriculture are a good idea. these go to things that are not economic. ethanol subsidies. large corporate farms. i am not in favor of giving welfare to business. >> a phone call from bowling green. a question or comment, please. >> a question for those opposed to federal earmarks. after the disasters we have had, how would they propose, with such little business going on, helping those community health centers that need assistance to rebuild and grow back? none of that comes from air

marks. the rebuilding come from an emergency fund. that is a misconception. >> you disagree? >> it does come out of the month. it does highlight that there are differences. he is right, it is the month. -- it is fema. >> huge speak no evil of a fellow republican. -- you will speak no evil of a fellow republican. how you assess your opponents and how they are meeting the standard? >> i agree with ronald reagan. if they are fellow republicans. a republican is somebody who stands for the constitution as written. >> you think these gentleman's do not. >> i am saying they did not. >> ronald reagan also said to

trust and verify. somebody said aren't you giving these boys too much hell? carts on children's issues, what is the one idea you would personally champion for the children in the u.s. and kentucky? >> i think the biggest thing that affects our children's lives is the debt. it is the focus on the future of our kids. and we can destroy it our great country. it has been spending beyond its means for more than a generation and the penalty will be paid by the children. the best thing for the children is to rein in the spending and and the pork barrel projects. take a stand on their marks. -- on earmarks. we would be that booming capitalist engine that did

defeat socialism. capitalism is a wonderful system. it is beyond compare. we have to believe in that and for our kids, let's do something with government to get it back away from the career politicians -- career politicians. >> childhood obesity is on the rise. kentucky ranks near the top of this the federal government have a role in curbing childhood obesity? >> i struggle with the appropriate role. there are school lunch programs run to the federal to vermont. there are ways they can encourage healthier eating habits. there are nutritional programs. my kids are in public schools. there is a small role. the first lady's speech where if she wants to take on the issue the way a lot of first ladies take on an issue and use the moral power of the office of the

first lady, i think that is an inappropriate role. legislating and micromanaging things better in the health care bill, i have more discomfort with that. >> in 1978, you probably remember this, a kentucky republican was elected to congress and he used the campaign same he thinks like us. closing question. which of you can lay claim to that slogan today? you think like kentuckians and deserved to be elected. >> my home is being foreclosed on. i have been waiting for a year and three months for a loan modifications. i have had medical bills with a wife with a bowel preparation. >> we are running out of time. >> i understand where their

problems are. i have eight great faith in god. scott will pull us out of this. we must be optimists and must return to god. >> i make that generation kentuckian. i am the only candidate with a record of slashing spending which we would all agree is something the federal government needs to do. doing more with less and having more efficient government is what we need in washington. >> he says rand paul is not a kentuckian. i have been from kentucky longer than you have been a and republican. i chose to move here. my wife is from there. i love ky. i love where i live. there is nothing unique about saying i have been here for 400

years. >> the federal government does not owe us anything. it is not meant to do anything for us. it is meant to get out of the way of the people and let the people have life, liberty, and the pursuit of happiness. >> thank you for being here. next week, we will talk about the 2010 elections. scheduled guests are charlie moore, steve roberts, and two of our primary election night commentators. thank you for watching. good evening. >> while we cannot presume to replace his wisdom or experience, i have selected a nominee who i believe embodies the sink excellence,

independence, integrity, and passion for the law and who can ultimately provide that same kind of leadership. our solicitor general, and my friend, elena kagan. >> with the nomion news, learn more about the nation's highest court from those who have served on the bench. the latest book, "the supreme court." conversations with justices, active and retired, provided insight into the court. available in hardcover and as an ebook. >> solicitor general indicated was nominated to the supreme court today by president obama. she graduated from harvard law school in 1986 and clerked for thurgood marshall. later, she became dean of harvard law school. her nomination goes to the senate judiciary committee. here is president obama announcing her nomination at the

white house. >> ladies and gentlemen, the president and vice president of the united states, accompanied by the solicitor general elena kagan. [applause] >> thank you. thank you, everybody. thank you. thank you very much. please, have a seat. good morning, everybody. of the many responsibilities afforded to a president by our constitution, few are more weighty or consequential than that of appointing a supreme

court justice. particularly ones who succeed a giant in the lot like justice john paul stevens. for 35 years, justice stevens has stood as an impartial guardian of the law. he faithfully applied the core values of our founding to the cases and controversies of our time. he has done so with restraint and respect for precedent, understanding that a judge's job is to interpret, not make a lot. also with fidelity to the constitution of ideal of equal justice for all. pe has brought to reach his mastery of the letter of the lot in the understanding of the impact on people's lives. he has emerged as a consistent voice of region -- of reason helping colleagues find common ground on some of the most contentious issues the court has ever faced. while we cannot presume to replace justice stevens's wisdom or experience, i have selected a

nominee who i believe in bodies that excellence, independence, integrity, and passion for the law. and who can ultimately provide that same kind of leadership on the court. our solicitor general and my friend, elena kagan. [applause] . . she is a former white house aide

with a lifelong commitment to public service. she is a trail blazing a leader, the first woman to serve as a dean of harvard law school, and one of the most successful and beloved deans in its history, and she is a superb solicitor general, our nation's chief lawyer, representing the american people posole interests before the supreme court. she is the first woman in that position as well. she has won accolades across the ideological spectrum for her well reasoned arguments and present. she is my choice and not just for her intellect and achievement, but for her temperament. she has a habit of understanding before disagreeing. she has their mindedness and skill as a consensus builder.

these traits were evident as her -- at her tenure as dean. she sought to recruit prominent conservative scholars and spur a healthy debate on campus. she encouraged students from all backgrounds to respectfully exchange ideas, because she believed, as i do, that exposure to a broad array of perspectives is the foundation and not just for a successful legal education, but for a life in a lot. her diverse views may come in handy as a lifelong mets fan, is serving alongside a diehard yankee fan, just as sotomayor. while she has had a brilliant career in academia, her passion for the law has been anything but academic.

she has often referred to supreme court justice thurgood marshall, for whom she clerked. he called her "shorty." he also reminded her that behind the law are stories, stories of people whose lives might be changed by the law. for her, the law is not just an intellectual exercise or words on a page, but an experience of ordinary people. during her time in this office, she has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations. last year in and the citizens in united case she defended bi- partisan campaign of finance reform against special interests seeking to spend unlimited money to influence our elections.

she chose it as her very first case to argue before the court. i think that says a great deal not just about her tenacity, but about her commitment to serving the american people. i think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown of the voices of ordinary citizens. i think it has a great deal about the path that she has chosen. someone as gifted as her could easily have settled into a comfortable life in a corporate law practice. instead, she chose a life of service, service to her students, service to our country, service to the law, and all those to -- all those whose lives it shapes. she is the granddaughter of immigrants. her mother was a beloved public school teacher for 20 years, as are her two brothers.

her father was a housing lawyer devoted to the rights of tenants. both were the first in their families to attend college. from an early age, they instilled in her not just the value of education, but the importance of using it in her life. but of her parents wanted her to succeed in her chosen profession, but they also instilled in her the values of service and integrity. her mother grew up at a time when women had few opportunities to pursue their ambitions. she took great joy in watching her daughter do so. neither she nor her father lived to see this moment, but i think her mother would relish it. i think she would relish, as i do, the prospect of three women having a seat on the highest court in the nation for the first time. [applause]

accord that would be more inclusive, representative -- a court that would be more inclusive, and more representative than ever before. elena kagan is a great lawyer, a great teacher, and a devoted public servant whom i am confident will make an outstanding supreme court justice. i hope the senate will act in a bipartisan fashion as they did in confirming her to become solicitor general. i hope it will do so as quickly as possible so that she can get busy and take up the work of the accord this fall. with that, i would like to invite the person whom i believe it will be the next supreme court justice of the united states, elena kagan, to the stage. [applause]

[applause] >> thank you. thank you. thank you, mr. president. i am honored and i am humbled by this nomination and by the confidence you have shown in me. during the last year, as i serve as solicitor general, my long standing appreciation for the supreme court's role in our constitutional democracy has become ever deeper and richer. the court is an extraordinary

institution, and the work it does, and in the work it can do it for the american people, by advancing the tenant of our constitution, by upholding the rule of law, and by enabling all americans, regardless of their background or belize to get a free and fair -- it there background or beliefs to get a free and fair hearing. justice stevens has played a particularly exemplary role, and it is a particular honor to be nominated to fill his seat. to walk into the highest court in this country, one that is deciding its most important cases, cases that have an is theon people's lives

most thrilling and humbling task a lawyer can perform. i have been fortunate to have been supported in all of the work i have done as solicitor general by a remarkable group of lawyers and staff, many of whom are here today. they exemplify professionalism, public service, and integrity, and i am grateful for all that they have taught me. my professional life has been marked by great good fortune. i clerked for a judge who represents the best in public service, and for a justice, thurgood marshall, who did more to promote justice over the course of his legal career than did any lawyer in his lifetime. i have had the opportunity to serve under two remarkable presidents who have devoted themselves to lifting the lives of others, and to have inspired

a great many more to do the same. i had the privilege of leading one of the world's great schools, and to ensure it that the people working in there were making it the largest possible contribution to the public good, both in this country and around the world. i am proud of what all of us accomplished there. through most of my professional life, i have had the simple joy of teaching, of trying to communicate to students why i still love the law, not just because it is challenging and endlessly interesting, although it certainly is that, but because lot matters, because it keeps us a safe, because it protects our most fundamental rights and freedoms, and because it is the foundation of our democracy.

i am thankful for my brothers and other family and friends for coming to washington to be with me here today. much more, i am thankful for all of their support and loyalty and love, not just on this day but always. if this day has just a touch of sadness in it for me, it is because my parents are not here to share it. they were both, as the president said, the children of immigrants, and the first and their families to go to college. my father was the kind of lawyer who used his skills and training to represent every day people, and to improve the community. my mother was a proud public- school teacher, as are my two brothers, the kind of teacher and students remember for the rest of their lives. my parents' lives and their memory reminds me every day of

the impact public service can have. i pray every day that i live up to the example that they said. mr. president, i look forward to working with the senate in the next days of this process, and i thank you again, mr. president, for this honor of a lifetime. thank you is so much. [applause] [applause]

[applause] >> here is senate judiciary committee chairman patrick leahy on the the joys of elena kagan to be the next supreme court justice. this is about 20 minutes. >> good morning, everyone. i hope you had a good weekend. for those for whom it is appropriate, i hope you had a good mother's day. my wife spent her mother's day with relatives, her daughter and

two grandchildren. today, president barack obama announced his nomination of solicitor general of elena kagan it to succeed justice stevens on the supreme court. the president chose from an impressive list of super requalify candidates -- of superbly qualified candidates. it was an amazing list of people he was considering. he consulted with people on both sides of the aisle, as well as those on the outside of the senate. he wanted to select an outstanding future justice who is well within the mainstream of legal and constitutional thought.

his election is the solicitor general of the united states. just over one year ago, the senate considered elena kagan to be confirmed as solicitor general. i have said before that i would like to see somebody from outside the judiciary nominated. ironically enough, it was just a few decades ago that most of the supreme court justices were from outside the judicial monastery. they did not come there as former judges. she will follow in the footsteps of her mentor, thurgood marshall, who also was nominated to the supreme court from the position as the solicitor general. her nomination will bring to the supreme court of diversity of experiences that have a been

missing since the justice o'connor retired in 2006. i urged the president to look outside the judicial monastery, and i told the president i was glad to see he did that. again, you look at the history, and you will see that justices of the varied backgrounds have long played a crucial role in shaping the court's decisions. some of the great justices in american history, like justice sandra day o'connor, had been in the arizona legislature, or justice louis brandeis, who was a professor and a practitioner, or just as black, that a great defender of the first amendment, who had been the united states senator. they were not in judges before they were nominated to the

united states supreme court. william rehnquist had never been a federal judge before he had his first nomination to the supreme court. chief justice earl warner -- earl warren came out with the real-world experience as a state attorney general and governor. he recognized the power of a unanimous agreement in the rejection of racial discrimination in brown versus the board of education. he worked for over two years to make sure that on such an important decision, there was a unanimous court, the country could not accept this decision if there was a sharply divided supreme court. and yet, we see now in too many recent supreme court cases, a narrow majority of five justices join together to undercut protections that millions of americans count on in their

lives for their very livelihood. i hope this confirmation process will be an opportunity for all americans to get a more detailed impact of the decisions of the nation's highest court on all of our lives. there is no better time to consider these important decisions as we look at the confirmation of the next justice. that process should be an opportunity for all americans to learn about the impact of court decisions on our lives, not a venue for partisan political attacks on the president's nominee. the senate, and in particular the members of the senate judiciary committee, will soon begin reviewing this a nomination. we recently reviewed her record in connection with our nomination to be solicitor general, a position for which she received bipartisan support.

it was just a short time ago that we had the confirmation hearing. it is really the same material that we will go through again to confirm her as a justice of the supreme court. we will have an opportunity to ask elena kagan about the important role the supreme court plays in the lives of each and every american. she will no doubt be questioned about her legal record and how she would approach the law with a different perspective as a member of the supreme court rather than as an advocate before the supreme court. i look forward to welcoming the american people and to those hearings -- into those hearings, to make sure that they are as open to the american public as possible. we will give her a response we -- we will give her a chance to

respond to the criticisms she has received even before she was nominated. there are 300 million americans affected by this nomination. only 100 get to vote on this nomination. we have to represent all 300 million americans in making a decision of a lifetime nomination. the senate is and should be the conscience of the nation, and no more so than when it considers a nomination to the united states supreme court. the decisions made at the highest court affect all 300 million americans. we 100 americans have a duty to the other 300 million to make a wise decision.

our constitution deserves a civil and thoughtful debate on this nomination. thank you very much. any questions? >> a number of republicans have already said that confirmation of the solicitor general is far different than a confirmation of the justice. what do you say to that? >> i am glad to see someone from outside the judicial monastery. again, it is only in recent decades that the justices have all been from the federal court. we had a -- our most dynamic courts have been made up of those who came from different backgrounds. i worry about the judicial monastery, that you do not have the kind of real world experience that you might have otherwise. i think she brings a record of

experience. of course, it is a little ironic if any were to complain that she has not been a judge. she was nominated to be a member of the d.c. circuit court, sometimes called the second highest court in the land, and the republicans threatened to filibuster her as they did 60 of president clinton's nominees. you cannot say, she did a great job, we bought her nomination. and then on the other hand say, she should have been a judge. we have a superb nominee, and she should be seen by the american people as the best that this country can offer, and we ought to confirm her. >> do you believe that this

confirmation should be approached differently since this is a lifetime appointment? >> a lifetime appointment does call for a different standard, but the questions are similar, because we are talking about one's legal abilities, a legal background. she was highly rated when she was nominated by president clinton to sit on the board -- to sit on the court of appeals before she was a filibuster by republicans. she had a very high rating as the dean of the harvard law school. of course, 8 confirmation is looked at separately -- each confirmation is looked at separately. >> do think you can get through this hearing in a quicker time

frame than you did with justice of the monarchs, and what to do think that time frame would be -- just a sotomayor, and what do you think that time frame would be -- justice sotomayor, and what do you think that time frame would be? >> obviously, we would like to finish it this summer so that she can sit in the court when they resume in october. >> are you confident that she has the breadth of experience she would need to be on the supreme court? >> we have had many supreme court members who have not had the brett of experience that she has had. she has real life experience. it would be hard to find people in this country who would stand

out as a greater legal scholar than she does. >> senator mcconnell made the point [inaudible] others have described her appearance before the court as shaky. does that give you pause at all? >> i believe she is going to be very impressive in the confirmation hearing. we have some republicans who would automatically oppose any buddying who -- anybody who was nominated. i told the president, you realize if you had nominated moses, somebody would point out that he does not have a birth

certificate. where is his birth certificate? i mean, come on. when we are talking about the supreme court justice, let us look at the qualifications and vote up or down. she will be confirmed. >> it sounds like some republicans have a new litmus test. >> i will be glad to come front and counter republicans when they step forward and make their argument in the light of day. >> arlen specter has said that she was not forthcoming enough with information, that he did not know enough about her. >> we will have a thorough confirmation hearing. i think one of the things both

republicans and democrats agreed upon at the sotomayor hearing -- i conducted the hearing, and i would say the same of senator sessions -- i conducted a hearing that was open and there, and people could ask any questions that they want. we will do the same here. i would hope that the american public would pay as much attention to this as they did to sotomayor. it was amazing that thousands of e-mails, calls and letters that i got. i would walk down the street in vermont and a number of people would just come up and let me know that they watched the hearings, they cared about the hearings, they cared about the result. i would hope that we would have the exact same thing this year. >> senator, i know you do not

think this should make a difference, but this is an election year. >> it is an election year? >> yes. >> i am up this year. you know, will it make a difference? perhaps. we are given six year terms. we are supposed to be the conscience of the nation. we are supposed to represent the american people. if people want to play politics with this, then they are not fulfilling their duties of what they should do in the senate. >> senator, we hear a lot about how the nominee at one. opposed "don't ask don't tell." what effect do you think that

may have on her nomination? >> she did come on the bus. i suspect that there were many recruiting officers close by the campus. when my younger son and joined the marine corps, he was able to walk three or four blocks from the campus to go to the recruiting station. >> she was a the first administration official to advocate for a public widening of the miranda rights. >> i saw that in the press but i have not talked to anybody about that. miranda came down when i was a prosecutor. i have known and number of a retired police officers in the vermont who would come up to me

and pull out a card printed with the miranda warning. i never had a case where we failed to get a conviction where we had given the miranda warning when i was a prosecutor. it does not really affect whether they're going to get a conviction or not. it is not a hindrance. i think of a case once when a burglary where they cut the person in the act, and they were asked, did you give them the miranda warning. they said they did. they also ask them to put down the back of stolen money. i think the jury understood. thank you very much.

[unintelligible] >> republican reaction to the nomination of elena kagan to serve on the supreme court. you will hear from senate minority leader mitch mcconnell who spoke on the senate floor for a few minutes. >> mr. president, i want to congratulate solicitor general kagan on her nomination. senate republicans will treat miss keeton with the same courtesy and respect that we treated just as sotomayor when she was nominated last year. -- justice sotomayor when she was nominated last year. at the end of her confirmation process, justice sotomayor

recognized that she had been treated fairly by everyone. unfortunately, that has not always been the case for re publican nominees to the court. nominees should be treated fairly as the judicial oath requires. the american people do not want a justice to be a rubber-stamp for any administration. ms. keeton is currently in the administration and -- miss is currently a member of a the napadministration. an appointment to the court is for a lifetime, and must be considered more seriously. the american people want a nominee with the requisite legal experience. they instinctively know that a lifetime position on the supreme

court does not lend itself to on-the-job training. of course, one does not need to have prior experience as a judge before being appointed to the country's highest court, but it strikes me that if the nominee does not have judicial experience, they should have essential litigation experience. elena kagan has neither. unlike justice rehnquist, for instance, who was in private practice for 16 years prior to his appointment as assistant attorney general to the office of legal counsel, the job he had at the time of his appointment to the supreme court. exploring these questions is precisely what the nomination process is all about. starting today, both parties will begin the process of reviewing elena kagan's brief litigation experience, as well as our history in academia but as a professor and as an administrator.

we will fill our duties to advise and consent on this throw process, and not have a rush to judgment. senate republicans will have a vigorous debate on the importance of equal justice under the law. this principle lies at the very heart of our judicial system. we will diligently review the elena kagan's record to ensure that she shares this principle and that she possesses the requisite experience to serve on the supreme court. mr. president, i yield the floor. >> now to the 2009 confirmation hearings for the president's pick for solicitor general, elena kagan. testifying at this hearing is the man who is now assistant attorney general at the justice department. this is two hours. >> mr. chairman and members of

the committee, i am deeply honored to be sitting here today, and of course i am grateful. i am grateful to the president for nominating me for this important position. i am grateful to the attorney general for supporting me, and to the committee for holding this hearing to consider my nomination. i am particularly grateful to the many members on both sides of the aisle who met with me prior to this hearing. i enjoyed those talks and i thank you for them. i want to say a couple of words about the two other people who are not here with me. i wish my parents had lived to see this day. my father was a lawyer himself, and took great pride in my professional accomplishments. he died about 16 years ago now, but he'd lived to see me argue before the supreme court and to become a professor at the university of chicago. my mother died just last summer, so her absence is particularly

difficult for me. she grew up at the time when few women it could choose to have a professional career. maybe because of that she relished my doing so. she would have loved this a day. both of my parents instilled in me a love for my chosen profession, but they also instill in me of value of service, character and integrity. i pray every day that i live up to the standards. i hope one other person is looking down on this hearing today. as you know, i had the privilege of working for justice thurgood marshall, the greatest lawyer, i think, of the 20th century. mr. marshall had some awfully good jobs in his life, but he always said that in the best, bar none, was being solicitor general. i am sure there are many reasons for that, but i have been thinking recently about one in particular. i think he must have been so deeply moved, walking before the

most important court in this country, when it was deciding its most important cases, and being able to say that he represented the united states of america. i think he would like it that a former clerk of his is being nominated to the same job, and if confirmed, will be able to say those same most fulfilling and most humbling words. to have an opportunity to lead the solicitor general's of this is the honor of a lifetime. as you know, this is an office with a long and rich tradition, not only of extraordinary legal skills, but also of extraordinary professionalism and integrity. that is due in large measure to the people who have a lead it, and i especially want to acknowledge several solicitor general's for their superb

service during these last eight years. they have maintained the highest standards of the office, and they have served their client, the united states of america, exceedingly well. of course, they have been joined in doing so by the career lawyers and other public service in the solicitor general's office. these men and women have been part of the finest law firm in the country, and they represent the gold standard in public service. the solicitor general's office is unusual in our government. it owes a responsibility to all three of the branches in our system of powers. because of this striking feature of the office, the solicitor general traditionally and rightly has been accorded a large measure of independence. most obviously, of course, the solicitor general reports to the attorney general, and through him to the president.

in this role, the solicitor general is the principal advocate of the executive branch in the courts of the united states. at the same time, the solicitor general is critical, and has critical responsibilities to congress. we must up -- we must defend the statutes of the constitution against attacks. the solicitor general has defended any federal statute -- in support of which any reasonable argument can be made. i plan to continue this strong presumption that the solicitor general's office will extend each and every statute enacted by this body. finally, the solicitor general's office has a unique obligation to the supreme court of the united states. it is frequently said that the

solicitor general serves as the 10th justice. i suspect that the justices think of the solicitor general more as the 37th clerk. regardless, the solicitor general must honor the principle of starry decisive, must exercise care in invoking the court's decisions, and must be scrupulously candid in every representation made to the court. i completely agree with what senator specter just said, the most important responsibility is to be true to the rule of law. mr. chairman and members of the committee, it would be an honor to serve the solicitor general if the senate sees fit to confirm me. i will do everything possible to live up to the great tradition,

expectations, and responsibilities of the solicitor general post office. thank you very much. >> i would like to ask a favor. if you would please read and then give me your thoughts on oa large article by the solicitr general who served under ronald reagan, in which he describes, from his perspective, the unique and important role as steward of the office of the solicitor general that people who have held that position have. i think it is a very good description of what a good solicitor general must be. >> i was told yesterday -- one of your staff told me that you had an interest in that article, and i did read it. >> i did not want to cut you off guard. >> is completely fair. i agree with you. it is a very thoughtful, powerful article about the

solicitor general's role. i might have a quibble here or there, but i found myself agreeing with all of the main point. >> is a bit of a template for how a solicitor general approaches deciding which cases to take and how to proceed. thank you for that. i do want to follow up on the point that senator coburn was making about the matter of experience. i talked to my grandkids about the difference between intelligence and wisdom. to encourage -- and from my perspective, wisdom is a combination of learning, knowledge and experience, which also produces knowledge. obviously, i am encouraging them to get that learning and to get that experience. while it is true that you, because of your stellar academic background, bring a great deal to the court as a litigant, it is also true that there is much to be gained by the experience

of participating in a lot of oral arguments before an appellate court. you learn by doing, and you learn how to be better than your opponent. you are always facing a, by and large, an experienced litigator who has practiced before the court on the other side. there is an efficacy, and ability that comes not just from academic knowledge, but by doing it. you learned through trial and error what works and what doesn't. i suggest that in the position of solicitor general, you learn which arguments can be effective and which cannot, even with cases you might want to take or not take relative to the possibility of winning. what i am saying is that a theoretical knowledge, academic knowledge, while important, and good public speaking, all important, in my mind, are no substitute for having done litigation which causes you, in

that arena, where you have to think very quickly and where your past experience can guide you in how to proceed, that as compared to someone without this experience, someone with dusty academic knowledge, is less suited to the position. i appreciate that you have great confidence in your ability. i commend your sense of humility when you face some very experienced litigator who knows the ins and out of the arguments because she has done it a lot of times before. i am not going to get into your background. this committee is well aware of that background. you can see that it does not consist of litigation experience. but respond -- and i am really concerned about this. i appreciate your academic learning. i think i am a fairly smart

lawyer trained in a lot, but i do not think i am a good candidate for a top opposition in a good law school. -- a top law position in a top law school. >> let me say that i completely agree with you on the necessity of wisdom and judgment as opposed to just book learning. i think that is true for many roles in life, the solicitor general included. i think one of the things that i would hope to bring to the job is not just book learning, not just the study that i have done of constitutional and public law, but a kind of wisdom and judgment, a kind of understanding of how to separate the truly important from the serious, or just the kind of situational, however you want to describe it. i hope that you will look at some of the letters that people have written about me, because i think in my current job and other places, i hope that i have demonstrated that kind of

judgment, as opposed to just book learning. i will say to you, senator, i am in complete sympathy with what you said. i like to think that one of the good things about me is that i figure out how to learn things when i need to learn them. this is one of those things where i am going to make a very intensive study of what i might be in for when i come to the job if you see fit to confirming -- to confirm me. i will talk to a lot of people in the office and outside of the office, really to try to figure out how to fill any gaps that there are. when you think about a job like the simplicity general -- like the solicitor general, frankly anybody will have gaps. one person might not have litigation experience.

another person might not have a deep knowledge of constitutional or statutory law and so forth. but would you have to do is try to figure out what you do not know. >> i appreciate that. the greatest knowledgeable certain will still have to get those fears working to do the right kind of selling -- get those figures are working to do the right kind of sewing. there is a difference between a 55 minute lecture and being constantly interrupted by the court to wear your wonderful presentation get whittled down to about five coherent things that you are able to say. let me just ask you -- and this relates to what was discussed earlier. the brief that you signed and was submitted on behalf of the law school, the court itself said it represented a rather cramped interpretation of the

law. it was not very kind to the interpretation in the brief that was submitted. do you think that if you had been solicitor general when this case came to the court that you would have defended the statute and that you would have interpreted it to bar universities from barring -- to bar universities from allowing military recruiters on campus? >> i would have, and i think it was absolutely clear. the third circuit held it unconstitutional. there is a clear obligation on the part of the solicitor general to uphold the statute in that circumstance, unless there is no reasonable basis to argue for the statute. this is an historic case. i know the case. i know the facts. i know the litigating posture of the case. of course there is a reasonable basis.

i mean, my gosh, the supreme court ruled 9-0. >> president barack obama nominated solicitor general elena kagan to the supreme court. last year she was confirmed as the solicitor general by the full senate after going before the senate judiciary committee. we just saw her opening statement at the confirmation hearing. now, here is the hearing in its entirety from february 2009. it is about two hours. [inaudible]

>> the committee will come to order. first, let me thank chairman leahy for allowing me to chair today's hearing. today we will consider the nomination to associate attorney general of the united states and the solicitor general of the united states. i agree with chairman leahy that this committee should be moved quickly to restore the morale and integrity of the department. i am pleased that this committee recently confirmed eric holder to be attorney general of the united states with the strong bipartisan vote, and the full senate overwhelmingly confirmed his appointment shortly thereafter. the associate attorney general is the no. 3 position at the department of justice. this position overseas a wider range of departments, including civil rights, antitrust, tax,

and the office of justice programs. the candidate comes to this committee with an expressive range -- with an impressive range of experience in both the private and public sector. for the final two years of the clinton administration, he served as deputy assistant attorney general, representing nearly every federal agency in complex civil litigation. he supervised a staff of 100 attorneys responsible for defending the constitutionality of federal statutes, defending federal agency actions and regulations, representing both the diplomatic and national security interests of the united states in courts of law, and conducting a wide range of other litigation. he also supervised the litigation against major tobacco companies. he worked for many years in a

washington law firm. his caseload included constitutional, intellectual property, and other cases. most recently, he served as part of the justice department transition team for president barack obama. he is a graduate of brown university and harvard law school. i also want to know that he has received the endorsement of several law-enforcement organizations, including the national fraternal order of police and the national center of missing and exploited children. these nominations -- these endorsements will be made a part of the record. elena kagan comes to the committee with a wide range of experience, having served as the dean of harvard law school, a lawyer in private practice, and a legal clerk to a justice of the supreme court. a graduate of princeton university and harvard law school, she clerked for justice thurgood marshall.

while teaching law school at the university of chicago she took on an assignment as special counsel to senator joe biden. she assisted in the confirmation hearings of the supreme court justice ruth later ginsburg -- ruth debater ginsburg. -- ruth bader ginsburg. in the white house counsel's office, she worked for the legislative offices analyzing statutory language and enacting policy. in the domestic policy council's office she played a role in the executive branch advocating policies on a wide variety of issues. in 1999 she left government and began serving as a professor at harvard law school teaching administrative law,

constitutional law, and civil procedures. in 2003 she was appointed to serve as dean of the harvard law school, becoming the first woman being in the school's history. in her five years at harvard law school she oversaw the academic and non academic aspects of the law school. i will enter a letter from the law school in support of her nomination. the solicitor general of the united states holds a unique position in our government. the occupant must be charged with conducting all litigation for the united states on behalf of the supreme court. she is often referred to as the tent justice. -- the 10th justice. the office participate in about two-thirds of all the cases that the court decides each year.

former solicitor general's and joined with six other solicitor general's of both parties in endorsing her nomination. i will make that record also part of the record. it is very complementary of our nominee. at the same time we expect the solicitor general to exercise independent judgment. the office is charged with vigorously defending statutes enacted by congress against constitutional challenge. the office supervises all lower court appellate litigation, and decides to appeal positions that are adverse to the government, and what positions should be taken in these cases. i want thank the nominees for being willing to serve their country. at this time, let me recognize

the republican leader on our committee, senator specter. >> thank you, mr. chairman. at the outset, may i say that your work on the committee has been outstanding. you have been here a little more than two years, and you are already the chairman of the committee, acting chairman of the committee, which is quite a testimony to you. we have forged together closely in those two years -- we have worked together closely in those two years, and it is nice to work with a lawyer's lawyer, which you are. i welcome the two nominees. both present outstanding academic credentials. in the situation with dean kagan, she is now the dean of

the harvard law school to supplement her outstanding academic work in the professional world. the senate has a broad responsibility under the constitutional confirmation to make increased beyond even extraordinary resumes like those presented here today. in evaluating president barack obama's nominees, we see perhaps what is a cautionary word during the campaign, when candidate obama had this to say about judges. now, the solicitor general is a substantially different from a judge, as is the position of associate attorney general. but in trying to evaluate, i

think it is there to look at philosophy. this is what candidate obama had to say. >> unique -- "you need someone with the heart and empathy to understand what it is like to be a teenage mom, to be poor, african-american, gay, disabled or old. that is the criteria by which i will be selecting my judges." i agree with the need for consideration, no doubt about it, on the categories identified by candidate obama. but we also have to make an inquiry as to the commitment to the law. nominees for key positions in the department of justice must

follow the law. if there are to be changes made, it is well established as a matter of philosophical doctrine, that it is up to the legislature to do that. when the kagan came to see me -- when the dean kagan came to see me, i asked her about a number of things regarding that. i asked her what a nominee would think about a given situation contrasted with the advocacy role which sheeps sharply distinguishes. she -- she sharply distinguishes. she represents that she can be an advocate as solicitor general of the positions she disagrees with philosophically.

if somebody is arguing something which they disagree -- which they deeply disagree with, i wonder how effective they can be. elena kagan has a very deep and views. i cite one in this introduction, and i talked to her about it. it regards "don't ask don't tell." i can understand the challenge to the underlying basis of the solomon decision, but this is what she said. "as dean -- as dean, as she reinstated military recruiters

to the harvard law school because to do otherwise would have been to forfeit a great deal of federal funding. she noted that the "action caused her deep distress." >> as a moral and justice of the first order. how can you, and could contras cannot be an effective advocate? this bears on the ability to apply the law. it was countered that the solicitor general has the obligation to uphold the constitutionality of the law.

there is a song -- is strong resumption of constitutionality. i commented to her about a case when i was district attorney with the pennsylvania statute treating women differently than men put it there were given a determinate sentences so that if they were convicted of larceny, they went to a woman's prison and having served the maximum, they could be kept longer. when i was asked to defend the statute, i refused. they brought in the state attorney general who defended the statute and it was stricken. there is a real issue as to the range of advocacy or perhaps the intensity of advocacy. i make this very brief comments to set the parameters and we have also the associate attorney general.

we have our responsibility to uphold to make these inquiries under the constitution to decide whether we should consent and a. >> thank you. it is an honor to appear here. dean kagan and that both attended harvard law school but it is obvious she is much younger and a much better lawyer. i have been following her career with great pride since her days not only at harvard but as she clerked on the u.s. court of appeals and for justice thurgood marshall. as the chairman indicated, she went on to teach law at the

university of chicago and served in the clinton administration and returned to harvard law school in 1999. during her tenure there, she has drawn acclaim as a pragmatic problem solver with rich illogical -- with a logical pride. she has also won praise from current and former students who have observed our country in uniform for creating an environment that is highly supportive of students to of served in the armed forces. i know that because i have met with many of these young men and women who served. they are uniformly praised full of dean kagan. she is eminently qualified to become solicitor general. it is not just her impressive run -- resume and billion mind, her wisdom and temperament and -- brilliant mind, her wisdom and temperament.

she gave a speech at west point. she was invited to speak to the cadets. she told the cadets that our nation is extraordinary because as she said, which lives in a government of laws. she used a place on day west point campus called constitution corner. this is a place in which the cadets see a plaque that says loyalty to the constitution. she understands that it is our duty to the constitution that is preeminent. she spoke about how our law and dedication to law and the rule of law is especially difficult during trying times. she saw these men as examples to try to uphold the law and trying circumstances and put doing the right thing i've been -- above all else.

if confirmed, i believe she will be an outstanding solicitor general. she brings exceptional qualifications and will be tough, fair, and and uphold the constitution and the people of the united states. thank you. >> thank you. we appreciate you being here. at this time, i would ask that the witnesses come forward. if you would stand in order to be sworn in. do you affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth, so help you god? thank you. perhaps the best way to start is to thank you for being here and appreciate your families being here. and at this time, it might be appropriate if you introduce the members of your family.

we already heard from one. if we could hear from the rest. >> i think you met by sun. -- son. [inaudible] >> my brother and lock, kevin, who made the trip from wisconsin. my extended family. [inaudible]

drdaughter.brother's i've brought some family from cambridge. some of my great friend from harvard law school the former solicitor general is here. john manning. all great friend of mine and i appreciate their coming down to support a. >> we welcome your families. we know the sacrifices they have to make in regard to your public service. i want to acknowledge for the record that two senators wanted to be here but they were called upon on other senate business and we will allow their statements to be made part of the record. >> mr. chairman, senator specter

and members of the committee cannot thank you for giving me the of -- to give me the opportunity to appear as a witness. i am grateful to the president' for being considered and disposed. i would like to thank the members of the committee and their staff met with me who will star what i have will be a dialogue about issues facing the country. there is deep knowledge about the many challenges ahead and i hope i will have the opportunity to work with you to overcome them. i would like to thank senators web and warner who have had their statements submitted to the record. i want to thank my wife, christine, especially now with my new baby arriving. she is here. you've already met my son, james. i also want to thank my mother who has been an inspiration to me for many years, not the least

of which is watching her as a single parent take care of me and my sister and go to law school at night. missing from the large contingent behind it is my father. he passed away in 2002 after a long struggle with cancer. i think of him today because my father was one of the career professionals at the heart of the department of justice. he made his career there and refused to retire until a day or two before he retired because it was what the find him. my reverence for the department began through him. i worked summers at the immigration and naturalization service. i had the opportunity to experience a lot of different aspects of the department, including visiting the men and women on the border in san diego to lure the extraordinary challenges they face and a remarkable job they do. in my time as an intern, i have the of virginity to talk with the attorney general -- i had the opportunity to talk to the

attorney general. when i completed law school, i clerked for the u.s. district court for the district of columbia. in that job, i saw the best of a government lawyers prosecuting cases from iran contra to drug gangs on the streets of dc and defending the u.s. in cases ranging from the savings and loan crisis to environmental regulation of nuclear power plants. all those experiences left me with a deep appreciation for the department. that appreciation increased exponentially later in my career when i first serves as counsel and later as deputy assistant attorney general. the men and women who served from administration to administration of put their lives on the line every day, the lawyers and staff whose goal is fair and even-handed application

of the law are remarkable and deserve more praise. i am honored to have been nominated and to have the opportunity to work among the career professionals. i have no illusions about the challenges that are faced today. they derive from a mission which has expanded greatly since september, 11. my vision is a justice department of which all americans can be proud. a department that at every level mix the even-handed application of the law without regard to party or personal views. a department that works in partnership with state, local and tribal authorities to most efficiently protect the public. the department that is transparent and gives the american people confidence. and a department that works with this committee and others to collaborate on the many challenges ahead. i look forward to answering your

questions. thank you. >> thank you. >> thank you, mr. chairman. members of the committee, i am deeply honored to be sitting here today. i am grateful. i am grateful to the president for nominating me to this important position. i am grateful to the attorney general for escorting me and to the committee for holding this hearing in considering my nomination. i am particularly grateful to the many members on both sides of the aisle who met with me prior to this hearing. i enjoyed those talks and i thank you for them. i want to share a couple words about two other people who are not here today with me. i wish my parents could have lived to see this day. my father was a lawyer himself and took great pride in my professional accomplishments. he died about 15 years ago. he lived to see me clerk for the supreme court and become a professor at university of chic.

my mother died recently so that is particularly difficult for me. she grew up a time when women did not seek high-powered careers and for that reason would relish meet doing so. both of my parents wanted to me succeed in my chosen profession. more than that, both drug and to bid the importance of service and character and integrity. i pray every day that i live up to those standards. i hope one other person is looking down on this hearing room today. as you know, i had the privilege of clerking for justice thurgood marshall, the greatest lawyer, i think, of the 20th century. justice marshall had some very good jobs through his life. he always said the best, bar none, was being solicitor general. i am sure there are many reasons for that.

i have been thinking recently about one in particular. i think he must of been so deeply moved to walk into the most important court in this country when it was decided its most important cases and to state his name and to say i represent the united states of america. i think he would have liked the former clerk of his to be nominated for the same job and if confirmed, would be able to say those same, most thrilling and most humbling words for a lawyer. to have the opportunity to lead the solicitor general's office is the honor of a lifetime. as you know, this is an office with a long and rich tradition. not only of extraordinary legal skill but also of extraordinary professionalism and integrity. that is due in large measure to the people who have led it. i especially want to it knowledge general olson and garr

for their superb service during these last eight years. been a time of some difficulty for the justice department, they have maintained the highest standards of the office and they have served their client, the united states of america, exceedingly well. of course, they have been joined in doing so by the career lawyers and the other public servants and the solicitor general potts office. these men and women can be called the finest law firm in the country and they represent the gold standard in public service. the solicitor general's office is unusual in our government. it those responsibilities to all three of the branches and our system of separated powers. because of this striking feature of the office, the solicitor general traditionally and rightly has been accorded a large measure of independence.

most obviously, the solicitor general reports to the attorney general and through him to the president and defense the break relations, policies and practices of the executive branch when these are challenge. in this role, the solicitor general is the principal advocate of the executive branch and the court of the united states. at the same time, the solicitor general has no less critical responsibilities to congress. most notably, the vigorous defense of the statutes of this country against constitutional attack. traditionally, outside of a very narrow band of cases involving the separation of powers, the solicitor general has defended any federal statute in support of which any reasonable argument can be made. i pledge to continue the strong presumption but the solicitor general's office will defend each and every statute enacted by this body.

finally, the solicitor general's office has the unique obligation to the supreme court of the united states. it is frequently said that the solicitor general serves as the tent justice. i believe senator cardin made reference to that phrase. i suspect that the justices think of the solicitor general as more as the 37 clarke. regardless, the solicitor general must honor the principles and exercise care in invoking the court's jurisdiction and most important of all, must be scrupulously candid in every representation to the court. in this sense, i completely agree with what senator specter just said. the most important of all the responsibilities is to the rule of law. it would be an honor to serve as solicitor general and i

commit that if the senate sees fit to confirm it, i would do everything possible to live up to the great tradition, expectation, and responsibility of the solicitor general's office. thank you very much thank you. we are going to have seven minute rounds. i will try to stick to that time limit for myself. let me start with the tradition of the department of justice over many years of being the premier agency for the people of this country. protecting the rule of law and representing the people of this nation. at holding anybody who violates this loss accountable, even if it is the president of the united states. in the last few years, there have been serious problems with partisan politics played within the department of justice as it relates to the recruitment and

promotion of career attorneys as it has been in selecting what type of cases will be pursued, overriding the advice of career attorneys in many cases for partisan reasons. i want to get your assessment, if confirmed to be the number 3 person, as to how you will approach the appointment, retention, recruitment of career attorneys, their assignments, and what impact partisan politics will play in regard to those decisions. >> senator, with respect, i think the answer for the last part of your question is none. you have identified an area where the justice department has come under criticism, including from the own inspector general. concerns about partisanship and hiring. that is something that under the law enacted by congress is

simply inappropriate. an attorney at -- important strides have been taken that problems of the past are not current problems of the justice department. i think it will be incumbent on the attorney-general and others as they are nominated and confirmed to take a serious look at the policies governing department and to take whatever additional steps are necessary to ensure there is no partisanship and hiring or assigning attorneys. my exxerience in working with the career professionals at the department is an extraordinary group and management in the department would be wise to listen to their recommendations. i hope to have the opportunity to do so. >> that is the answer i expected to hear. let me just caution you. you are responsible for the people that you supervise within the department of justice.

we expect that message to be very clear to all the people. partisan politics will not play a role in the deployment of career personnel. i am pleased to hear you say that but i want to make sure that becomes a priority and a message that is clearly understood at all levels within the department of justice. the second point i want to raise is the civil rights division. what has happened in the civil rights division in the last eight years. the number of significant cases have been diminished greatly. resources made available to that office has been reduced. i want to know what priority you tend to place -- you intend to place on the civil rights division. >> the attorney general has made clear that will be a significant priority of his. there will be 8 -- it will be a

significant priority of mine. you identified both set of concerns about partisanship that have been the subject of a recent inspector general report that was quite disturbing. as well as the reality that many of the civil litigating component is the one that has declined in terms of resources even though the number of statutes being enforced in the job at has to do is greater than it was in 2001. i think it is a very high priority to focus on the kitchen and make certain -- to focus on the division and make certain it will have significant responsibilities following the 2010 census and the management of the department has to give it special focus to ensure it is ready. >> dean kagan, buy and sell -- to support your statement about enforcing the laws regardless of

personal views. that is your responsibility to the solicitor general. i want to talk about the potential conflict between the laws that congress passes and the inherent power. this has been an issue that has come up in regards to detainee rights and the use of in his techniques for interrogation. i want to know how you will approach the issues when we are talking about fundamental rights and protection of the separation of branches of government. speaking as a member of the senate, i want to make sure the solicitor general is sensitive to the role that you can play in making sure that the appropriate protections are maintained. >> thank you. it is an extremely important question. every solicitor general nominee who has sat at this table has always said there are two very

rare exceptions where solicitor general will not defend the nice days when there is simply no reasonable basis to do so in the second is when that statute and fringes directly on the powers of the president. i will say the same thing to you. there is a category of cases in which statutory defense might be an appropriate because it violates separation of powers concerns. i think that is an extremely narrow category of cases. i would go back to the youngstown framework that i know so many of you are familiar with. that framework says that when congress authorizes presidential power, presidential power is at its highest. when congress is silent, we are

in middle ground and where congress says no to presidential power, denies presidential power, presidential power is at its lowest. there are occasional times when presidential powers still exist. think about if congress were to tonight and a power on the president. you would say there is a constitutional commitment here. that category of cases, i think, is exceedingly narrow ann that is how i would approach the problem that you raise. >> thank you for that response. i would also hope there would be some transparency in making those judgments so there is an opportunity for input and challenges of the fundamental issues. with that, i recognize senator specter. >> thank you, mr. chairman.

i sent you a letter on the issue of congressional oversight and told you i would be asking you at the hearing today and my question is whether you agree with what the congressional research concluded was the scope of congressional oversight when they say doj has been consistently obliged regardless -- regardless of its litigation is pending. the investigating committees or provided the documents that included prussic your -- prosecutorial memoranda, fbi investigative reports. do you agree with congressional research statements of the congressional authority on oversight? >> the pass--- the passages you provided, i agree with the description of the scope of permissible oversight by congress that reaches all

aspects on which it could legislate. i think that passage does not discuss interests of the executive branches in certain circumstances and the process of accommodation that goes back and forth and has historically between the executive and legislative branches. >> were to supplement your answer by specifying what kind of ecstatic witted circumstances you see to deviate from that standard? >> i want you to supplement your answer in writing because i only have seven minutes. >> i will do so. >> you said you will adopt that as a generalization but there might be extenuating circumstances. please provide that to me in writing. "the washington post" has an account today on the state secrets doctrine.

it was invoked as the predecessor in federal court in opposing the reinstatement of the lawsuit that alleges that boeing flew people to countries where there were tortured as part of the cia's extraordinary rendition program. i know you dealt with state secrets doctrine. do you think this is a wise use of the state secrets doctrine as reported in the post today? >> i think with respect to the question of any particular case, it would require for me to have more knowledge about particular classified information. >> would you take a look at the case and the statute which senator kennedy and i have pending and give us your judgment on that? >> i will, sir. >> there have been a large number of cases by the department of justice in taking

monetary fines in the face of gigantic malfeasance on a company that did a dollar billion per year and they got a $1.70 billion fund. i would appreciate if you took a look at those cases. those cases look as if the funds are really license to violate the law. as opposed to a criminal sanction which has some real teeth. one more question before moving over to dean kagan. . .

>> "it is not an exercise of legislative power, but robert legislature, something that article oneress'' power. -- i believe congress has the power to establish jurisdiction did you stand by this assertion -- jurisdiction. do you stand by this assertion? >> with respect to that assertion, the argument was that congress cannot overturn a prior, final court judgment.

those arguments and concerns were raised going back to the founding fathers. that was an issue that no court had never ruled on. i do not think we know the outcome. >> there are concurrent and -- there is concurrent jurisdiction between the state and federal courts. there is double jeopardy that a state prosecution does not bar the federal government from initiating a prosecution on the same facts. this is an exercise in congressional authority to establish jurisdiction. why not? >> i think the argument that we made in that case was that what the impact or effect of congress's enactment was essentially to attempt to read litigate issues that had been in the state court. dr. re-litigate issues that had been in the state court. issueso read-litigate that had been in the state courts. coming toan kagean,

some of the citations i had come to earlier about how strongly you felt on the salomon case. you wrote a memo for justice marshall in a case which involved the adolescent family life act, authorized federal funds for religious organizations, designed to discourage teen pregnancy and provide care to roupregnant teenagers. the supreme court upheld the statute. your memo said, "it would be difficult for any religious organization to participate in such projects without injecting

some kind of religious teaching ." i asked you about the solomon military issue, where you had very strong moral objections. do you assert that you can function in an advocacy role, notwithstanding your own personal views? how would you distinguish your confidence to do so in light of what you say here? i understand why you say it. religious organizations might be inclined to reject some of their religious doctrine. but is not that an inevitable consequence, even for a skilled advocate who feels very strongly about the matter, with respect to the capability to really do

the right job in advocacy? >> senator, thank you for raising that memo. i first looked at that memo and thought about that memo -- for the first time in 20 years, just a couple of days ago when it was quoted on a blog. i looked edit and thought, that is the dumbest thing i have never heard. [laughter] >> you do not have to go any further. [laughter] are you telling us you will not make that same mistake again? >> you should never make the same mistake twice. >> i wish i could follow that advice. [laughter] one final question, mr. chairman. in a whole series of memos which you sent to justice marshall, let me join you in extolling the virtues of justice marshall.

there was a case that followed a pattern that you had in five emos, crew expressed concern over what the majority of the court might do as a reason -- where you expressed concern over what the majority of the court might do. this involved an admission. your memo said, "the addition of this statement is outrageous." you then expressed, "worry that the court might find opposite results so that all ambiguous statements in the future will be construed in favor of the police." you expressed similar sentiment in five cases. it has all the appearance of an overarching philosophy in deciding what cases to decide.

is it not really the function to decide whether an injustice has been done, when you say it is outrageous, and not to look to a broader public policy concern as to what the court might do as it affects other cases? you have a defendant with a constitutional right. is that it and not entitled to have a decision on the merits of his case -- is that a defendant not entitled to have a decision on the merits of this case? as opposed to bonds abroad, philosophical grounds. but it is a very distinct question. the supreme court jurisdiction -- as opposed to a very broad browngrounds. >> it is a very distinct question. i do not have a recollection of that case. i have not thought about it for tv zero decades. let me step back -- for two

decades. but a step back reproduced an enormous amount of paper for justice marshall -- let me step back. we produced a number of memos for justice marshall. we're hundreds and probably thousands. i am sure there were hundreds of criminal cases of which -- again there was a post about five of them. i do not want to say there is nothing of me in these memos. you first asked about the case where it -- that it is fair when you look at a memo to think that i was stating an opinion, however men -- however wrong in may have been. in large measure, these memos were written in the context of being an assistant for the justice. you are trying to facilitate his work. you're trying to enable him to advance his goals and purposes as a justice. most of what we broke was in

that context. i was a 27-year-old -- what we wrote was in that context. i was a 27-year-old pipsqueak, working for an 80-year-old giant in the law with very strong legal views. he knew what he thought about most issues. for better or for worse, he was not really interested in engaging with his clerks on first principles. he was asking us in the context of those to think and to channel him, to think about which cases he would want the court to decide. in that context, i think all of us for right to say, here are the cases which -- all of us were right to say, here are the cases which the court is likely to do good things with from your perspective. that is what those five memos were doing. >> senator feingold.

>> thank you, mr. chairman. congratulations on your nomination. i was personally delighted when you were appointed. i've really enjoyed working with you on a number of issues. all the women have made great strides in the legal profession in recent decades, the nomination of the first female solicitor general as a historic moment for our country and for the production -- for the profession. president obama should be congratulated for making this nomination. you touched on something that think answers would ever concerns some in the the senate are outside might have about your personal views or positions. out like to ask you a question that i asked tad olson -- i would like to ask you a question that asked ted olson when he was under confirmation hearings. he had written something 20 years earlier about public policy. what policies are implemented, the law must be enforced by the

justice department -- once policies are implemented, the law must be enforced by the justice department. whether we like them or not, where the government's lawyers. even if we disagree with the policies of a lot and even if we feel there are questionable constitutionality, we must enforce the rights. do you agree? >> absolutely. there is simply no question not when one assumes the solicitor general's role, one is assuming a set of responsibilities and obligations, of which the defense the statute is one of the most critically important. the defense of the statutes, whether you would have voted for those or not. i know that ted olson would not have voted for the mccain-final bill. -- feingold bill. but he did an extraordinary job defending that piece of legislation, which i think you will agree. that is what the solicitor general does.

but i agree with that. he did a superb job. -- >> i agree with that. he did a superb job. i could've sworn that he was persuaded because of the job he did. >> for that day, he was persuaded. that is all you need. >> let me ask you about the conflict of interest restrictions. it is somewhat ironic. as i mentioned, i was pleased with how the justice department handled their responsibility to the king -- to defend that bill. he is involved -- his been involved in challenging the constitutionality of the statues. -- since he left office, he has been involved in challenging the constitutionality of those statutes. i'm somewhat concerned by that. his challenge in the statutes that he defended ably as solicitor general. president obama has been very tough ago restrictions -- ethical restrictions, going well beyond revolving-door

limitations. can you review the ethical restrictions that exist for the solicitor general's office and determine whether more descriptive rules ought to be in place so that you did not end up on the other side issues that you directly for debate in while in government service? -- that you directly participate in while in government service? >> will be honest. i do not know much about this. -- i will be honest. i do not know much about this. i will be going back to academia. i will not argue against anything i have defended. it is an interesting and important question and i will look into it. >> thank you very much. mr. perrelli, i am pleased to have decided to return to the department of justice. i want to follow up on the state secrets document issue. i didn't -- i have been concerned by the invocation of those.

courts tend to be very deferential to these privilege claims. there is an opportunity for abuse. yesterday, there was a press report that the department of justice has told u.s. court of appeals for the ninth circuit that it will continue to assert its state secret privilege against five men who cling to be the victims of rendition -- to claimed to be the victims of rendition. -- who claimed to be the victims of rendition. justice department to ensure the privilege is not invoked to hide from the american people information about the government's action that they have a right to know. this administration will be open and transparent with our national security obligations. i am glad to hear this review is underway. i will follow this issue very closely. i will not ask you about this case. but will you commit to me that if you are confirmed, you'll arrange for a classified briefing on this case, so that i understand the decision you have

made? >> with respect to that case, i would need to consult with others at the department about what information is most appropriate to be shared. i will say that my background and experience in this area has let me see the issue from all sides. as a law clerk, and worked on iran-contra and the difficult issues and how you move forward in a criminal case where gossip -- were classified issue is part of the matter. -- where it classified issues are part of the matter. -- were classified issues are part of the matter. -- where classified issues are part of the smatter. i also have represented companies to more than -- whose more than billion dollars claims were held not to be liable because of state secrets privilege. i look forward to being part of that review.

>> you give me an answer about whether i will get a classified briefing. >> i will. >> i believe that you indicated to senator specter that he would take a closer look at the legislation that he and senator kennedy introduced in the last congress, which was approved by this committee, to give better guidance to the courts on how these clans a state secret privilege should be handled. -- how these claims of state secret privilege should be handled. >> i look forward to it. >> there are claims that this important a decision -- it is very important that the department did behind these claims. i understand your response 04 divisions of the justice department that deals with civil cases, antitrust, and others. these divisions has a criminal enforcement section, which would also supervise. what in your background gives you the experience needed to take on these criminal responsibilities? >> i appreciate the question.

in my prayer service, i served as counsel to the attorney service, in my prior served as counsel to the attorney general. i had a supervisory role. it was over both the civil and criminal aspects, including a crime, environmental crimes. my experience dovetails well with those aspects of criminal jurisdiction that fall within the associates role. >> thank you. >> senator coburn? >> welcome. dean kagan, you earlier explain your role of all three branches of the federal government. what if we have a statute that has been previously signed by the executive branch, passed by congress, and an executive order that undermines the statute?

in that case, you would have to figure out whether you support the executive order or you support the statute. how would you determine that? >> is a very interesting, hypothetical question. -- it is a very interesting hypothetical question. the first thing i would do is really reached out to the people within the government. both within the administration and also to congress. i would try to direct what is going on and to requires representation. there would be a lot of work to be done. i would talk to people both .hose responsible and t i will give you my gut instinct. in a case like that, the defense -- the obligation to defend the statute continues. the same exceptions are the only

reasons in which you would not defend the statute, either if there is no reasonable basis in law, and it would not appear to me that in that -- that an e.o. would call into question this. it would also depend on a core element of executive power. there were deep those two exceptions, both extremely narrow. -- there would be only those two exceptions, both extremely narrow. my guess is your hypothetical question would not fall into either. >> the only real criticism you have is that you have not been a litigant in the past. sendposition -- i do not patients to the professors university unless their experts in the field to a practice, rather than just thought -- who have practiced, rather than just

taught. have never been a justice or a litigant. i have no doubt -- you have never been a justice or a litigant. i have no doubt that you're up to the task. how will you prepare yourself? >> it is a very important question. i am very confident that i am up to this part of the job, as i am to the many other parts of the job. >> i have no doubt. >> i will tell you why did you get up to that podium, -- i will tell you why. when you get to the point of the question is less how many times have you been there than -- when you get up to that podium, the question is less how many times have you been there, then what you bring with you. i have studied the particulars of the constitution over administrative law issues. i bring up some of the communications skills that have made me a famously, excellent

teacher. [laughter] i hope i bring up strong, legal analytic skills. this is for you to determine at the end. i will bring up those kinds of skills and excellent judgment. i hope what is most important is a kind of candid and direct way of speaking -- i think i also bring that. i should also say that i will, by no means, be the first solicitor general who has not had extensive or any supreme court argument experience. i will give you a few names. ken starr. several people have not appeared before the court prior to becoming solicitor general. >> some of them had some difficulties in their presentations before the court. i'm not accusing you of that. [laughter]

>> now i want to know who you mean. [laughter] >> come and visit with me and we will have a great conversation about that. mr. perrelli, i have a few questions for you thank you -- for you. thank you. >> you are the most important member of the committee to me, at least today. the department of justice -- >> the department of justice is implemented a lot of our nation's top exploitation laws. the one thing that i think the attorney general and dulles got right was establishing -- attorney general gonzales got right was establishing these. we enforce these -- will you enforce these or seek to make changes?

>> with respect, it is likely that the responsibility of that rule does not fall in my purview. in terms of enforcement of the act as well as defense of the act, in the event that is challenge, which may well come under this, i would seek to enforce the law. i would defend a lot of any reasonable argument could be made. i've done that in the past. i have depended most of these statutes. we defended the child online protection act, for example. >> the same would apply to that act and the act from 1988. >> to the best of my knowledge, we would be most likely -- those would be most likely to fall under criminal jurisdiction. >> does any of your past experience in terms of those that you are defended or

advocated for will affect your ability to enforce, in the right manner, those appropriate laws? >> no, i do not. >> thank you. i participated in the legislation, adding child exploitation and enhancing the enforcement of law. it enhances criminal penalties for using the internet to violate those laws and expands the reporting requirements of the electronic communication and remote computing services with respect to apparent violations%+ of such abuse. if confirmed, will you have any problem vigorously enforcing such laws? >> with respect to any enactment of congress, my role will be to defend that statute, if any reasonable argument can be made. i would be happy to work with the committee on that. >> i have one more question.

do you personally believe adult obscenity contributes to the sexual exploitation of children in any way? >> senator, i cannot say that i have any recollection of looking at saw -- looking at social science at all. i would say that there -- we have to do everything we can to protect children from depictions that are going to be harmful to them. i would certainly work with the committee and take whatever steps are appropriate. >> it is not your view that in and of itself, adult obscenity contributes to child exploitation? >> with respect to adult obscenity -- we were talking about unlawful materials -- i think those are criminal and need to be prosecuted. with respect to the impact of them to the extent that there seen my children, it certainly would impact children. -- that they are seen by

children, it certainly would impact children. i did not have any other use. it would obviously concern me to the extent that the same adults doing that material are also inclined towards -- >> i will be happy to send you the literature on that. thank you. i would ask unanimous consent -- i have to leave -- to submit my questions for the record. >> it might be appropriate to put into the record the documentation we have, in the support of mr. perrelli from the missing and exploited -- the national center for missing and exploited children, the boys and girls club of america, the national center for victims of crime, the petrol order of police, the federal law enforcement officers association, the national association of police officers, and the police executive research forum. >> without objection. senator klobuchar.

>> congratulations to both of you. dean kagan, when the senator introduced to, he did not emphasize your university of chicago background. it is not easy to survive there. i congratulate you. i was reading an article here. how did you manage to get a standing ovation from the federalist society at harvard? after i listened to your exchange was senator coburn, i think i understand. it is very important that we restore a belief in aloft over politics to the justice department. i think your background -- your background in reaching out to people of different views will be helpful. i was going to ask a more specific question. you talk about how you respect so many of the other solicitors general for their roles in how they have a public law and argued for the law, even when they did not believe in it. talk about very narrow exceptions when it impinges on the executive power.

is there anything you change about the solicitor general's role? -- theisten in general solicitor general's approval is always needed in an appeal. it does not play a role when the government wins the case. has led some inconsistency in some of -- it has led to some inconsistency in how some of these appeals have been taken. >> thank you, senator. it is an interesting question. i think it will disappoint you a little bit. my basic view of the solicitor general's office is, if it ain't broke, don't fix it. i do not think this office is broke. it has been an extraordinary office for many years, with dedicated civil servants and incredible lawyers. the leadership has been quite excellent.

some of the practices you were talking about have grown up because it is so important for the solicitor general's office to maintain the credibility with the court and for the court to this will servegh general has an understanding of what it is and can do. you said the solicitor general only decides which appeals to take. there are many times when people in the government do wish to take a case up to the supreme court, where some part of the government or agency has lost the case, and the solicitor general is often in the the position of saying no. -- in the position of saying no. it is extremely for the court to protect its jurisdiction and it sure is not deluged. sure is not deluged.